The People, Respondent,v.Lionel McCray, Appellant.BriefN.Y.May 8, 2014State of New York Court of Appeals REPLY BRIEF FOR DEFENDANT-APPELLANT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, First Department Supreme Court, New York County, Indictment No. 5145/09 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LIONEL MCCRAY, Defendant-Appellant. TO BE ARGUED BY: MARK M. BAKER COURT OF APPEALS NO. APL-2013-00146 TIME REQUESTED: 20 MINUTES STANLEY NEUSTADTER, ESQ. MARK M. BAKER, ESQ. Attorney for Defendant-Appellant CARDOZO APPEALS CLINIC 55 Fifth Avenue New York, New York 10003 (212) 790-0410 Date Completed: December 26, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ...............................................................................1 POINT I APPELLANT’S CLAIM THAT THE EVIDENCE DOES NOT ESTABLISH THAT HE ENTERED A “DWELLING” WAS PROPERLY PRESERVED FOR REVIEW BY THE COURT OF APPEALS (Replying to Point I of Respondent’s Brief at 22-31)................................................2 POINT II CONTRARY TO THE PEOPLE’S ARGUMENT, THE TRIAL EVIDENCE FAILED TO DEMONSTRATE THAT THE RESIDENTIAL PART OF THE HILTON HOTEL WAS READILY ACCESSIBLE FROM THOSE OTHER PORTIONS OF THE BUILDING WHEREIN APPELLANT WAS OBSERVED, AS CHARGED IN COUNTS ONE AND TWO, NEITHER OF WHICH MET THE STATUTORY DEFINITION OF “DWELLING” (Replying to Point I of Respondent’s Brief at 31-46)..............................................12 A. Absence of Proof of Interconnectedness .................................................13 B. Discussion ................................................................................................23 1. Madame Tussaud’s and the Hilton Hotel Lack the Requisite Interconnectivity for the Museum Alone to Satisfy the Definition of “Dwelling,” Thereby Requiring Application of the “Astor House Exception” .........................................................23 2. People v. Quattlebaum Made No Determination that The Revised Burglary Statute Abrogated the “Astor Exception” .........29 ii POINT III BECAUSE THE ACTS CHARGED INVOLVED ONE CONTINUOUS SCHEME, AND EACH ACT CONSTITUTED ONE OF THE OFFENSES AND WAS ALSO A MATERIAL ELEMENT OF THE OTHER, THE SENTENCES IMPOSED ON EACH COUNT SHOULD HAVE BEEN MADE TO RUN CONCURRENTLY (Replying to Point II of Respondent’s Brief at 47-53) ............................................36 CONCLUSION........................................................................................................39 iii TABLE OF AUTHORITIES Federal Cases Bono v. United States, 113 F.2d 724 (2d Cir. 1940) ........................................ 4 fn. 1 Heflin v. United States, 358 U.S. 415 (1959) ..........................................................38 Jackson v. Virginia, 443 U.S. 307 (1979)..................................................................6 Prince v. United States, 352 U.S. 322 (1957) ..........................................................38 United States v. Addonizio, 449 F.2d 100 (3d Cir 1971) ................................. 4 fn. 1 United States v. Bell, 524 F.2d 202 (2d Cir. 1975) ...........................................23, 24 United States v. Gore, 154 F.3d 34 (2d Cir. 1998) ..................................................38 United States v. Palafox, 764 F.2d 558 (9th Cir. 1985)...........................................38 New York Cases Chance v. Guar. Trust Co. of New York, 164 Misc. 346 (Sup. Ct. Kings Co. 1937), aff’d, 251 A.D. 855 (2nd Dept. 1937) .........................25 People v. Anderson, 66 N.Y.2d 529 (1985).............................................................32 People v. Butts, 72 N.Y.2d 746 (1980)............................................................. 4 fn. 1 People v. Caban, 14 N.Y.3d 369 (2010)................................................................8, 9 People v. Cantave, 21 N.Y.3d 374 (2013) .................................................................5 iv People v. Chestnut, 19 N.Y.3d 606 (2012)................................................................6 People v. Contes, 60 N.Y.2d 620 (1983) ...................................................................6 People v. Felder, 2 A.D.3d 365 (1st Dept. 2003) ....................................................37 People v. Foster, 64 N.Y.2d 1144 (1985) ..................................................................2 People v. Frazier, 16 N.Y.3d 36 (2010).............................................................36, 37 People v. Gray, 86 N.Y.2d 10 (1995) ..................................................................6, 10 People v. Harris, 136 N.Y. 423 (1893) ............................................................. 4 fn. 1 People v. Hawkins, 11 N.Y.3d 484 (2008)................................................................6 People v. Hughes, 22 N.Y.3d 44, 2013 N.Y. LEXIS 3153 (2013)............................9 People v. Mahboubian, 74 N.Y.2d 174 (1989)..........................................................5 People v. Matarese, 57 A.D.2d 765 (1st Dept. 1977)........................................36, 37 People v. May, 290 N.Y. 369 (1943)................................................................ 4 fn. 1 People v. Napolitano, 282 A.D.2d 49 (1st Dept. 2001).............................................6 People v. Olsen, 34 N.Y.2d 349 (1974).....................................................................5 People v. Prado, 4 N.Y.3d 725 (2004).....................................................................10 People v. Quattlebaum, 91 N.Y.2d 744 (1998) ................................................passim People v. Razezicz, 206 N.Y. 249 (1912)......................................................... 4 fn. 1 People v. Russell, 71 N.Y.2d 1016 (1988) ................................................................4 People v. Torrel Smith, __ N.Y.3d __, 2013 WL 6589555 (December 17, 2013)....9 v Quinn v. People, 71 N.Y. 561 (1878) ...............................................................passim Federal Statutes 21 United States Code § 841(a)(1)...........................................................................38 New York Statutes New York Criminal Procedure Law § 200.30 .........................................................37 C.P.L. § 470.05 ........................................................................................................10 C.P.L. § 470.05(2)......................................................................................................9 New York Penal Law § 70.25(2) .............................................................................37 P.L. § 140.00(2) ...............................................................................29, 30, 31, 34, 35 P.L. § 140.00(3) .................................................................. 6, 29, 30, 32, 33, 34 fn. 4 P.L. § 140.25(2) .........................................................................................................1 Former P.L. § 403 ....................................................................................................32 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LIONEL MCCRAY, Defendant-Appellant. ------------------------------------------------------------------- REPLY BRIEF FOR APPELLANT PRELIMINARY STATEMENT This Brief is in reply to that submitted by Respondent, the People, in opposition to an appeal, by permission of Hon. Susan Phillips Read, in a certificate dated June 6, 2013, granting Defendant-Appellant Lionel McCray (“Appellant”) leave to appeal, from an order of the Appellate Division, First Department, entered on January 24, 2013, affirming a judgment of the Supreme Court, New York County (Nunez, J.) rendered on August 6, 2010, convicting appellant, following a jury trial, of two counts of Burglary in the Second Degree (P.L. § 140.25(2)) and sentencing him to two consecutive terms of imprisonment of 7½ years, amounting to an aggregate term of 15 years, to be followed by 5 years of post-release supervision. 2 POINT I APPELLANT’S CLAIM THAT THE EVIDENCE DOES NOT ESTABLISH THAT HE ENTERED A “DWELLING” WAS PROPERLY PRESERVED FOR REVIEW BY THE COURT OF APPEALS (Replying to Point I of Respondent’s Brief at 22-31) The People renew their argument, originally raised in response to appellant’s appeal to the Appellate Division, that he “has failed to preserve his claims not only because he failed to lodge his objections in a procedurally appropriate manner, but also because he simply never made his specific current objection at trial.” (Resp. Brief at 22). Although we have already dealt with this issue preemptively in our principal brief, a few additional comments are in order. The fact is that the People’s argument, while attractive at first blush, overlooks significant parts of the record and pertinent precedents in this Court. In a nutshell, it “has surface appeal but exalts form over substance.” People v. Foster, 64 N.Y.2d 1144, 1146 (1985). To be sure, the application of defense counsel to dismiss the charges was less than pristine, and was commingled with arguments not pursued by appellant either in this Court or the Appellate Division. Specifically, as we recognized in our principal brief, in addition to challenging the nature of the premises which 3 appellant had indisputably entered as not amounting to a “dwelling” because the building was merely attached, albeit lacking connectivity, to premises that met the definition of that term (viz., the precise question which we raise anew in this Court), defense counsel did indeed simultaneously argue that to constitute a dwelling the subject premises entered had to be closed to the public. It is this latter argument alone that we have “not pursued on appeal.” (Brief for Appellant at 22- 23). The record demonstrates that, absent any need at this time to “cobble[] select portions of arguments that [counsel] made before and during trial,” (Resp. Brief at 23), the precise issue raised on this appeal was specifically invited by the trial judge prior to jury selection. It was thereupon addressed by the defense attorney, the assistant district attorney and Supreme Court at a point in the record, and under appropriate circumstances, wherein the Court of Appeals has earlier found preservation. Therefore, contrary to the People’s argument that “defendant cannot fairly claim that his challenges below were ‘specifically directed at the error being urged,’ or that the court ‘expressly decided the question raised on appeal’” (Resp. Brief at 28), as will be shown, the established record demonstrates unquestionable 4 reviewability of the issue herein raised. 1 As the record is constructed, immediately following the court’s Sandoval ruling, defense counsel noted that, it’s my contention that some of the burglaries in the Second Degree count should be dismissed from the indictment in terms of what the actual facts are, in terms of legality of dwelling versus commercial establishment. I believe Your Honor had asked me to hold that motion until the close of the People’s case. (R. 210.)2 Allowing counsel to continue, the court said “[w]ell, you want to make the motion, go ahead now, I have read the grand jury minutes.” Id. (emphasis added). This is certainly a far cry from the situation depicted in People v. Russell, 71 N.Y.2d 1016, 1018 (1988), cited by the People (Resp. Brief at 23), wherein “[t]he 1 This is so, notwithstanding any contrary representations as to the controlling facts and the physical layout of the subject building which had been made by defense counsel at trial in his effort to advance what appears to amount to inconsistent defenses (cf. People v. Butts, 72 N.Y.2d 746, 748-49 (1980)). (See Resp. Brief at 22). Rather, it has long been the rule that it is not so much counsel’s interpretation of the record that controls as it is that “the facts from which the controlling inferences were drawn must themselves have been proved, not presumed.” People v. May, 290 N.Y. 369, 371 (1943) (citing People v. Razezicz, 206 N.Y. 249, 272 (1912) and People v. Harris, 136 N.Y. 423, 429 (1893)). Cf. United States v. Addonizio, 449 F.2d 100, 103 (3d Cir 1971) (“It is ‘hornbook law’ that a court of appeals may consider only facts of record, and it is the record alone which controls the facts”) (citing Bono v. United States, 113 F.2d 724, 725 (2d Cir. 1940) (“Though the appellant has briefed this appeal as though facts stated in the brief, but not shown by the record, may be given effect it is, of course, the record alone which controls as to the facts)). 2 Numerical references are to the record on appeal. 5 trial court denied that motion expressly as ‘premature’ and ‘without prejudice to renew[,]” an opportunity of which the defendant had not later availed himself. Here, counsel immediately accepted the invitation and continued with his challenge to the indictment. The trial judge’s indulgence at that point in the proceedings, as noted in our principal brief, is wholly compatible with this Court’s broad rule that “[t]he statutory framework however is not a rigid one and the common-law power of the trial court to alter the order of proof ‘in its discretion, (and) in furtherance of justice’ remains at least up to the time the case is submitted to the jury[,]” People v. Olsen, 34 N.Y.2d 349, 353 (1974) (citations omitted) (see Brief for Appellant at 23). See also People v. Cantave, 21 N.Y.3d 374, 379 (2013) (“court has power to alter order of proof and, concomitantly, reopen the proof, at least until the jury commences deliberations”). In fact, on just this point, this Court has even held that, “[c]ontrary to the People's argument, those contentions were preserved by defendants' pretrial motions to dismiss on that precise ground, even though defendants did not specifically seek dismissal on that basis at the close of the People's evidence.” People v. Mahboubian, 74 N.Y.2d 174, 188 (1989). This proposition is even more compelling in this particular case because, in reality, the issue was not the sufficiency of the grand jury minutes versus the 6 sufficiency of any additional trial evidence, wherein the latter normally would eclipse the former on appeal (cf. People v. Napolitano, 282 A.D.2d 49, 52-53 (1st Dept. 2001)) (see Resp. Brief at 24). Rather, the issue in this case was — and remains — whether, as a matter of statutory interpretation, the same building depicted in both proceedings amounts to a dwelling. The issue of law before the grand jury, therefore, became the precise issue at trial, with the People essentially offering the same theory and proof — albeit, as will be shown, somewhat inconsistently with their position on this appeal as concerns the issue of access between floors. Accordingly, the issue of evidential sufficiency in this case is not whether the “dwelling” element was established so as to allow a rational juror to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); People v. Contes, 60 N.Y.2d 620 (1983). Instead, it is whether such element, as a matter of law, could ever be established in the first instance, given the nature of the subject building and whether it could meet the statutory definition under P.L. § 140.00(3). On such premise, it simply made no difference when the court was willing to address that issue, as long as it is unmistakable that the court in fact did. That is essentially all that People v. Chestnut, 19 N.Y.3d 606 (2012); People v. Hawkins, 11 N.Y.3d 484 (2008); and, People v. Gray, 86 N.Y.2d 10 (1995) require. 7 At that time, therefore, upon accepting the court’s invitation to proceed, and in addition to his later motions to dismiss following most of the People’s case, as recounted in our principal brief (Brief for Appellant at 20-22), defense counsel argued much more, in addition to his now abandoned “not open to the public” claim — upon which the People seem to rest the entirety of their present challenge: So, the Hilton Hotel is attached to these four or five buildings that take up a whole block. I submit to the court that someone shouldn’t be charged with burglary of a dwelling if they go in, if the entrance to one of these commercial establishments that may be three buildings away but technically somehow attached because of the design of all of these buildings. So, it’s my argument that certain of these second degree burglary charges should not stand because the People’s premise is that, well the Hilton is attached. I don’t believe there is evidence of my client taking anything out of the Hilton. He is alleged to have taken things out of these other establishments below. *** And when you just attach a hotel to the end of it and then try to charge someone with a burglary for anything that happens on any of these other floors that really is, tangential related to the Hilton, the person was not in the Hilton and didn’t have access to the Hilton, I don’t believe those Second Degree Burglary charges of a residential dwelling should stand because of the unique nature of this whole complex. (R. 212-13) (emphasis added). This is precisely the same argument which appellant now presses on this appeal — certainly with respect to the Second Count, dealing with Madame 8 Tussaud’s. Even if the People decline to accept that reality in this Court, the assistant district attorney at trial certainly did. For, in his direct response to counsel’s judicially invited motion, the prosecutor assumed precisely the same dogmatic position that the People now maintain in response to this appeal on the merits: [t]he case law in this area I submit is absolutely black and white. If the commercial establishment is within the confines of the exterior walls of the residential location, then the commercial establishment is, for purposes of Burglary in the Second Degree, considered residential. That is exactly the point here*** The case law is absolutely clear that Madame Tussaud’s is within the exterior walls of the Hilton and as such legally it is proper to charge it as a residence for purpose of Burglary in the Second Degree. (R. 214-15) (emphasis added). Clearly, in response to that particular part of defense counsel’s argument which is pursued further on this appeal, the prosecutor emphasized that the fact that Madame Tussaud’s is located in the same structure as the Hilton rendered it, ipso facto, a “dwelling.” Obviously, appellant’s “objection was clear from the prosecutor's summary of [his] position.” People v. Caban, 14 N.Y.3d 369, 373 (2010). Again, in directly refuting trial counsel’s argument and our consequent 9 position in this court, the prosecutor said that “the case law is absolutely clear that Madame Tussaud’s is within the exterior walls of the Hilton and as such legally it is proper to charge it as a residence for purpose of Burglary in the Second Degree.” (R. 215). Crucially, the trial judge, then and there, denied defense counsel’s motion “based on the People’s argument.” Id. In other words, the court specifically held, precisely as the prosecutor asserted, that because Madame Tussaud’s is indeed located in the same structure as the Hilton, ergo, it is a dwelling. Under such circumstances, “[b]ecause the trial judge was made aware, before [s]he ruled on the issue, that the defense wanted h[er] to rule otherwise, preservation was adequate.” People v. Caban, supra, 14 N.Y.3d at 373. Otherwise stated, “the trial court, in response to defendant's protest, ‘expressly decided the question raised on appeal,’ thus preserving the issue for review.” People v. Torrel Smith, N.Y.3d , 2013 WL 6589555 (December 17, 2013) (citing C.P.L. § 470.05[2]). See also People v. Hughes, 22 N.Y.3d 44, 2013 N.Y. LEXIS 3153 (2013) (“Having been raised by defendant and decided by the trial court, the … issue … was preserved for appeal (see CPL § 470.05[2]).” This Court has determined that a specific ruling of a trial judge will suffice for reviewability. Hence, even if “this objection alone would not have been 10 sufficient to preserve the issue for [this Court’s] review when coupled with the trial judge's specific findings … , the question now on appeal was expressly decided by that court.” People v. Prado, 4 N.Y.3d 725, 726 (2004) (citing People v. Gray, supra and C.P.L. § 470.05). On this record, therefore, the People’s claim that “Justice Nunez obviously was in no position to rule on the sufficiency of the trial evidence before the trial even began[],” (Resp. Brief at 24), is easily belied. Nor do the People acknowledge the trial prosecutor’s crystallization of the issue, which had been undertaken in such stark black and white terms. And certainly the Supreme Court’s ascribing to such prosecutorial crystallization its specific imprimatur is nowhere acknowledged in the People’s lengthy preservation argument. In sum, contrary to the People’s assertion that “the only argument that [appellant] made in furtherance of that claim [i.e., “that he did not burglarize dwellings”] was that the buildings that he burglarized were open to the public” (Resp. Brief at 27), defense counsel had specifically maintained as well that the mere attachment of Madame Tussaud’s to the Hilton did not render it a dwelling. Because the prosecutor at trial specifically addressed and disputed that claim, and because the trial judge specifically embraced the prosecutor’s eschewal thereof and his contrary view of the law, the issue now raised was appropriately preserved for 11 review. 12 POINT II CONTRARY TO THE PEOPLE’S ARGUMENT, THE TRIAL EVIDENCE FAILED TO DEMONSTRATE THAT THE RESIDENTIAL PART OF THE HILTON HOTEL WAS READILY ACCESSIBLE FROM THOSE OTHER PORTIONS OF THE BUILDING WHEREIN APPELLANT WAS OBSERVED, AS CHARGED IN COUNTS ONE AND TWO, NEITHER OF WHICH MET THE STATUTORY DEFINITION OF “DWELLING” (Replying to Point I of Respondent’s Brief at 31-46) In furtherance of appellant’s claim regarding the applicability of what we have denominated as the “Astor House Exception,” as articulated in Quinn v. People, 71 N.Y. 561 (1878), it is crucial for the Court to have a complete understanding of the actual record on the issue of such interconnectedness. The People’s core argument is that, [w]itness after witness testified that groups of establishments in the building were internally connected by a number of shared fire stairwells. And they specified that an intruder could gain access to both Madam Tussaud’s and the residential floors of the Hilton through Stairway D, which ran from the ground floor up to the roof (Horniak: R. 448, 459, 470-74, 476-79, 489, 511—12; Rainey: R. 514-16, 534-36, 538, 540-41, 543-45, 562; Bagshaw: R. 618). (Resp. Brief at 37). The People are wrong because they cherry pick and oversimplify a far more 13 complex record. In fact, the record, in its entirety, suggests that the Hilton is not at all readily accessible from the other, commercial components of the building. Applying Quinn, not the distinguishable People v. Quattlebaum, 91 N.Y.2d 744, 747 (1998), to the record facts, therefore, it is clear that the People have not made out a legally sufficient case of aggravated burglaries. A. Absence of Proof of Interconnectedness Although, as will be shown, the evidence at trial provided by the Hilton and Madame Tussaud’s personnel was somewhat ambiguous, if not self-contradictory, there does remain a crucial common denominator. Thus, combining the referenced testimony of Frank Horniak, the overnight security manager of the Hilton Times Square; Andre Rainey, a security guard and building planner employed by Forrest City Rattner who worked the overnight shift at 234 West 42nd Street; and, Kathy Bagshaw, the Director of Operations of Madame Tussaud’s, it was ultimately established that egress from the Hilton to the stairway leading to Tussaud’s was readily detectible, and ingress back into the hotel through the same doorway was probably impossible without the necessary key, as even the trial judge acknowledged. Moreover, the very video tape evidence demonstrates that a trespasser would 14 be easily discovered and thereby subject to immediate consequences which prevented unimpeded access from one component to the other. In fact, each separate establishment had its own elaborate videotape systems (Horniak: R. 477, 493; Bagshaw: R. 591, et seq.). Initially, when seen in the men’s locker room in the Hilton’s ML level, appellant was in the only area in the hotel that could be accessed by someone without an access key (Horniak: R. 454). That area is alone serviced by a dedicated staircase leading from Stairway E which only serves the Hilton and which does not lead to the street, since it is locked at the ground level between 41st and 42nd Streets (Horniak: R. 477, 453-54; 486; Ranier: R. 540). Stairway E goes form the roof to the Hotel’s 14th Floor (Horniak: R. 453). Thus, an individual at the ground level could not enter that stairway, only exit therefrom, as a means of egress (Horniak: R. 486). Both staircases D and E have motion detectors at the 14th floor level (Horniak: R. 490). Thus, after exiting the hotel, Defendant was essentially tracked throughout the building and quickly discovered as soon as he reached the street level exit from the all-important Stairwell D (Horniak: R. 459, 462, 484, 491-92, 493; Rainey: R. 546). The lobby of the Hilton is located on the 14th floor of the building, and 15 Madame Tussaud’s, which is part of the base building below that level, has a separate security and video surveillance system. Further, the only accessible establishments from Stairway D — in addition to egress from both Tussaud’s and the Hilton, all resulting in motion detection — are Dave and Buster’s restaurant and the AMC theater. According to the record, in order to achieve ingress into the hotel, which has its own security, one has to go outside from the other establishments and then re-enter through the Hilton itself (Rainey: R. 536). Also, Stairway D, which leads from the hotel to multiple establishments, including Madame Tussaud’s, Dave and Busters, the AMC Theater, and the basement offices, is closed to the public. Specifically, like Stairway E, it is locked from the outside on 41st Street at the ground level, thereby precluding ingress access (Horniak: R. 471, 495-96, 509, 512; Rainey: R. 517, 544, 545, 561-62). Thus, appellant was discovered exiting from Stairway D at the street level (Horniak: R. 455). Given the motion detector at Stairway D on the 14th floor where the hotel begins, an alarm sounds when someone moves in either direction, thereby immediately alerting personnel at the security dispatch office to notify those on patrol to inspect the area (Horniak: R. 490, 491, 492-493). There is normally a minimum of three persons on patrol on any given night (Horniak: R. 494). 16 At the 14th floor hotel level, however, while movement is readily detectible, the stairway is not locked from the hotel side and one could use it as a means of emergency egress (Horniak: R. 477, 490). It also allows public egress for the other named establishments (Rainey: R. 547). Crucially in this regard, the record is ambiguous on the issue of whether the door at that level, or any other level, is locked from the stairway, thereby precluding ingress. On the one hand, Horniak first claimed that from the public access areas of the Hilton, one could use the stairway to exit and then to access other parts of the complex, although there would be separate security at each level provided by the various entities (Horniak: R. 476, 477). To be sure, this included the suggestion that one could even enter the Hilton from Stairway D at the 14th floor — although the alarm would immediately sound alerting security personnel (Horniak: R. 492). He did agree, however, that each doorway on the stairway was essentially for egress for emergencies (Horniak: R. 478). On the other hand, the record establishes that both Stairways D and E (the latter of which, as noted, only goes from the roof down to the 14th floor) are exits from for the public from the hotel for purposes of fire safety (Horniak: R. 453, 477-78, 486, 490, 511). Thus, during the prosecutor’s re-direct examination of Horniak the following was stated: 17 Q: Mr. Horniak, I want to take a moment and talk about the access points that are on the D stairway. Do you know if these access points, are they points of entrance into those locations or are they points of of exits to these locations? A. I believe they are exits. I walked down the staircase once several years ago when I was becoming certified for the hotel for fire safety, and I went down the stairs and the door was locked. MR. FIGGINS [defense counsel]: Objection. I’d ask it be striken from the record. The witness is not going to testify to his belief. THE COURT: Overruled. Q. You testified that people from the public can get into those stairways, it’s possible, is that right? A. From the building, yes. Q That is not a normal way to get into or out of for the joint public? A. No, not at all. (R. 511). According to this view, therefore, which the prosecutor further elicited, the doors are locked outside of certain levels, such as that leading into Dave and Busters, thereby precluding ingress into such components, which is “not a normal way to get into or out of for the joint public” (Horniak: R. 478, 511). In fact, Horniak went further and actually “assumed” that all ingress doors on all floors are 18 locked, thereby preventing re-entry into any given establishment on any particular floor (Horniak: R. 471, 478). Indeed, to Horniak’s knowledge, Stairway D below the 14th floor is not open to the public, because “I don’t think just anybody could walk in to, I am sure they [all the other commercial establishments] have their own security” (Horniak: R. 477). To add to the ambiguity, when counsel suggested that the 14th floor had “no lock on the door,” Horniak, who had just indicated that there were no doors, ambiguously responded with the double negative: “No, that can’t be, no, sir” (Horniak: R. 490). Notably, when, on cross-examination, defense counsel tried to establish that anyone could access the establishments through Stairway D, the prosecutor, with considerable support from the court, ensured that the record reflected that, because he had keys, only Rainey could access certain establishments, and even he had limited access: Q. You can access all those doors from stairway D? A. No, only like I said in order to get — Q. I am saying if you are in the stairwell — MR. LEET [prosecutor] Your Honor, objection I ask that the witness be permitted to answer the question. 19 THE COURT: Sustained. What’s the question? Q. If you are already in the stairwell, not, we’re not — THE COURT: When you say you, are you referring to Mr. Rainey with his key, when he has a key you are referring, whey you say you, you mean specifically Mr. Rainey. Q. If a, I am asking for the layout in this stairway D so I am saying if you have already past, we already established that the fire doors there maybe locked that you can’t get in to the stairwell? A. Right. Q. Once you are in I’m asking you and you are going up the stairs and an individual is going up stairway D you said Madame Tussaud’s had four to five floors? A. Yes. Q. What other establishments have doors that are access points in stairway D? MR. LEET: Objection, your Honor, at this point. THE COURT: Sustained. Q. If you are inside doorway D what other establishments can you get to from stairway D? MR. LEET: Objection. THE COURT: You, you mean him? MR. FIGGINS: Yes. THE COURT: With his key? 20 A. I can’t get in, I don’t have keys for all establishments, you know what I am saying, I only have keys to certain floors which belong to the base building, which belong to our building, but Dave and Buster’s and Madame Tussaud’s they have their own keys, I can’t get into their establishments. Q. What doors are there, whether you can get into these or not, what doors are there in stairway D that you can, what other doors there are to other businesses that you can access? A. That is Madame Tussaud’s and Dave and Buster’s, that’s it. Q. So, only those two locations? A. Yes. Q. In stairway D? A I’m sorry, one is AMC too. THE COURT: One is what? THE WITNESS: AMC, the movie theater. Q. You don’t have keys or anything to any of those doors, correct? A. Yes. (R. 563-565) (emphasis added). Thereafter, on re-direct, while guided by the prosecutor, Rainey soon went further. He repeated that, in fact, he could not get into any floors, other than Madame Tussaud’s, Dave and Busters’s and the AMC movie theater, for which he 21 had keys (Rainey: R. 564). Also, one had to come out of other establishments in order to get into the hotel (Rainey: R. 536). Thus, when the prosecutor, on re-direct examination, asked about the absence of such ingress access, the following colloquy ensued: Q. Stairway D is the one that has access points? A. Yes. Q. If I, without a key, manage to get past the two locked doors to get into stairway D and I am climbing those stairs and I get to, let’s say the fourth floor has a door that says Madam Tussaud’s, I don’t know if it does let’s just say it does, if I am in that stairway and I do not have a key can I open the door and get in to Madam Tussaud’s? A. No, sir. Q. Because that is an exit door? A. Right. Q. So, when you say that there are access points you mean that there are doorways that lead to those locations? A. Right. Q. You don’t mean that a person can actually get in to that location? A. Right. MR. FIGGINS [Defense counsel] Objection. 22 THE COURT: Is that right? THE WITNESS: Not from the stairs. Q. Sir - - THE COURT: Overruled. (R. 570-71) (emphasis added). This inability of ingress into the various establishments from stairway D was supported by Madame Tussaud’s Director of Operations. Kathy Bagshaw testified that certain doors leading therein from Stairwell D are fire doors (Bagshaw: R. 617). Although she did state that “you can only get in them through a fire door push bar on one side and there are other doors that you looked at that are not fire doors that you would be able to walk through the door[,]” id., she nevertheless added that “[a]t that time of night I would expect those doors to be locked.” Id.; emphasis added. On the other hand, the fifth floor fire door by the freight elevator of stairway D, alone, had been apparently accessible into the facility. Thus, while there is no proof as to from where, or how, appellant entered the men’s locker room (although, inferentially, from the Hilton’s own roof, via Stairway E), the videotape shows from where appellant had entered Madame Tussaud’s (R. 618- 19). Referencing all this testimony, and in furtherance of the now abandoned 23 theory (so strongly contested by the prosecutor) that the building, in its entirety, could only be regarded as a dwelling if all parts were not open to the public, defense counsel, renewing his motion to dismiss, argued that, from stairway D, “[a]t any point in time an individual can walk in to the lobby of the Hilton Hotel and from that Hilton Hotel the testimony shows that a person can enter a staircase and essentially make their way through that whole complex” (R. 654). The trial judge, however, immediately cut him off, stating that “I don’t think that is what the testimony established.” (R. 654). In fact, according to the judge’s view of the entire record, “[t]he testimony established that the doors are supposed to be locked anyway.” Id.; emphasis added. The court then instructed counsel to “think about the evidence” because “I don’t think that really fairly depicts what the testimony was.” Id. B. Discussion 1. Madame Tussaud’s and the Hilton Hotel Lack the Requisite Interconnectivity for the Museum Alone to Satisfy the Definition of “Dwelling,” Thereby Requiring Application of the “Astor House Exception” For all the reasons stated in appellant’s principal brief, the People’s rather absolute claim that “since the Hilton’s locker room and Madam Tussaud’s were 24 “‘under the same roof’ as the portion of the main building that was used for residences, they were dwellings too[,]” (Resp. Brief at 32) (quoting People v. Quattlebaum, supra, 91 N.Y.2d at 747), fails to appreciate the complete record that their own prosecutor herein constructed. Consequently, it is without merit. Indeed, as even the trial judge understood, “[t]he testimony established that the doors are supposed to be locked anyway.” On such evidence, the “under the same roof” language of Quattlebaum, as informed by Quinn, simply does not support an aggravated burglary. Rather, the full record demonstrates that the requisite interconnectivity between the Hilton and the other components was not established. First of all, the “Astor House” reference in Quinn, and the explanation it afforded, is not simply “dicta” which, the People at least suggest, can be essentially ignored. Rather it is “judicial dictum” as opposed to “obiter dictum.” As explained in United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975), a distinction should be drawn between “obiter dictum,” which constitutes an aside or an unnecessary extension of comments, and considered or “judicial dictum” where the Court, as in this case, is providing a construction of a statute to guide the future conduct of inferior courts. While such dictum is not binding upon us, it must be given considerable weight and can not be ignored in the resolution of the close question we have to decide. 25 See also Chance v. Guar. Trust Co. of New York, 164 Misc. 346, 350 (Sup. Ct. Kings Co. 1937), aff’d, 251 A.D. 855 (2nd Dept. 1937) (“An expression of opinion upon a point involved in a case, argued by counsel, and deliberately passed upon by the court, although not essential to the disposition of the case, if a dictum, should be considered a judicial dictum as distinguished from a mere obiter dictum, which is an expression originating alone with the judge writing the opinion, as an argument or illustration.”) Certainly, that appears to be what this Court meant to accomplish in Quinn when it preceded its reference to the Astor House with the hope that it would “ward off misapprehension.” Such was not an “unnecessary extension of comments.” Rather, it was the Court “providing a construction of a statute to guide the future conduct of inferior courts.” Bell, supra. As we argued in appellant’s principal brief, Quinn, underscores the conclusion that commercial or non-residential components of a larger building, which are separately occupied and maintained by distinct entities, and which are not easily accessible to a residential component, are not, ipso facto, deemed to be dwellings as well where the entered commercial component is ‘not so connected with [a residential area] as that an entrance into the former by force would be likely to rouse one sleeping in the latter.’ Id., 71 N.Y. at 571-72. (Brief for Appellant at 37-38). 26 That is precisely what the record, as elaborated upon above, demonstrates: Access to the Hilton from the other floors is not easily accomplished since, as explained by Frank Horniak and Andre Rainey, as confirmed by Kathy Bagshaw, and as concluded by the trial judge, certainly some, if not all, doors to certain establishments leading from Stairway D are locked. Although appellant clearly entered Madame Tussaud’s from the fifth floor stairwell (Bagshaw: R. 618), the record does not demonstrate how defendant had initially entered the Hilton, although most likely from its own roof at the top of Stairway E (Horniak: R. 453). In this regard, although the push bar on the Hilton side of the fire doors on Stairway D allowed ready access from the hotel to the other landings, the ability of traffic to move in the opposite direction, into the various establishments, was not at all demonstrated to any level of certainty. Consequently, because, as the trial judge understood, most, if not all the doors in the stairway leading to the hotel were locked, the result would be that Madame Tussaud’s remains only a “part of a dwelling-house … so severed from the rest of it, by being let to a tenant, as to be no longer a place in which burglary in the first degree can be committed[,]” Quinn, 71 N.Y. at 573-74, thereby lacking in the requisite “internal communication.” Id. On this analysis, our claim is not at all “unmoored from reality.” (Resp. Brief at 39). 27 Thus, even if the Court views the Hilton locker room (Count One) to have been shown to have the requisite internal connection to the Hilton proper (Resp. Brief at 36), despite its own dedicated staircase to its otherwise inaccessible ML level, that simply cannot be said about Count Two, which solely contemplates appellant’s entry into Madame Tussaud’s after midnight, when he was caught on videotape. Contrary to the People’s view, such “internal connections” at the subject building “between its non-residential parts and its ‘dwelling rooms’” (Resp. Brief at 36, quoting Quinn, 71 N.Y. at 573-74) were simply not established, going the other way.3 Thus, the People’s necessary premise that “there was overwhelming proof that the emergency stairwells, and particularly Stairwell D, connected and ‘commingled’ the residential floors of the main building with all of its other floors, including the commercial floors[,]” (Resp. Brief at 37), is not sufficiently supported by the record. The People further seek to undercut the effect of Quinn by attempting to distinguish the very structure in that case, vis a vis the high rise buildings of modern times: 3 As seen, it would not be a sufficient answer that there must be inter-connectivity, because appellant obviously managed to get into Madame Tussaud’s after he exited the Hilton. Based on the limited record, the possibility has not been precluded that appellant simply had the necessary keys to gain ingress from Stairwell D. That would not change the character of the building any more that it would the Astor House, had one possessed keys to the several diverse components. 28 Plainly, the Astor House exception was not meant to apply to burglars in buildings like the one at 234 West 42nd Street. Indeed, unlike large modern structures, the Astor House had no emergency stairwells that allowed burglars to move throughout the main building and endanger the hotel’s guests. Thus, the stores that were under the same roof as the Astor House could be considered “so severed from the rest of [the hotel]” that the “terror in breaking open a dwelling house” was not present if a burglar unlawfully entered one of those commercial establishments. Quinn, 71 N.Y. 568, 574. That was simply not the case here, where there was indeed “internal communication” that allowed a burglar such as defendant to make his way from the commercial establishments to the “dwelling rooms” of the Hilton. Id. at 574. Thus, by its own terms, the Astor House exception simply does not apply to defendant. (Resp. Brief at 39). But, aside from this view remaining insufficiently unsupported by the evidence which shows a lack of ingress due to locked doors (as dramatically elicited by the trial assistant in his re-direct examination of Mr. Rainey), by the same token, unlike the Astor House, the subject building in this case boasted an extensive surveillance system. That complex array of technical equipment, as contained in virtually all modern buildings, involved myriad cameras and motion detectors, all causing immediate reaction when they are set off. Unlike so many years ago when the Astor House was the exception, the result is that, today, given the security systems in place, there is far less concern of 29 “the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation.” Quinn, 71 N.Y,. at 567. For, in light of the surveillance and safety equipment described at trial, sleeping residents in the hotel simply have no similar fears from someone who would first enter Madame Tussaud’s and thereby somehow gain undetected access into the Hilton. 2. People v. Quattlebaum Made No Determination that The Revised Burglary Statute Abrogated the “Astor Exception” It is readily apparent that the ultimate determination of this appeal will depend on this Court’s view of the enactment of P.L. § 140.00(2) and its provision that “[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.” As we argued in our principal brief, “such was not intended to undercut the ‘Astor House’ exception noted in Quinn and hence, does not evince a legislative intent to create a ‘dwelling’ out of an unaccessible non-dwelling component in a Manhattan high rise that contains components on higher floors that otherwise satisfy that definition under P.L. § 140.00(3).” (Brief for Appellant at 45). Instead, in our view, its “[l]egislative history clearly demonstrates that the 30 purpose of the enactment was simply to criminalize conduct in the first instance, regardless of degree, which might otherwise have escaped prosecution all together. Stated differently, it was never meant to elevate to a second degree what, in the absence of the statute, might still be prosecuted at a lesser degree.” Id. at 47-48. This issue has now been starkly joined because, according to the People, “the dicta in Quinn upon which [appellant] relies was interpreting a statutory provision that was no longer in existence when defendant committed these crimes.” (Resp. Brief at 40). They contend that “[t]here is nothing in the current statute or its legislative history that would remotely suggest that the Legislature intended to keep the connection language that was present in the burglary statute when Quinn was decided in 1878 (see Appellant’s Brief at 47-52).” (Resp. Brief at 41). Thus, the People ultimately maintain that by eliminating the troublesome statutory language that was the subject of Quinn’s dicta, the Legislature also eliminated the significance of the dicta about the Astor House on which defendant exclusively relies to make his current ‘dwelling’ claim. Indeed, there is no language at all in the current burglary statute that would cause this Court to write that dicta today. Rather, the actual holding of Quinn fits comfortably with the current language of Penal Law §§140.00(2) and (3). (Resp. Brief at 41). The People’s argument concerning the inapplicability of Quinn is premised 31 on an unfounded reading of Quattlebaum. Although this Court, of course, will have the last word concerning the scope of its own precedent, we respectfully submit that, as we earlier argued, “Quattlebaum provides no such rule.” Nor could it have so ruled, as we maintained, “without specifically undermining the exception delineated in Quinn.” (Brief for Appellant at 43). In order to avoid unnecessary repetition, we rely for the most part on our discussion of Quattlebaum in our principal brief, wherein we emphasized that, in Quattlebaum, the Court, by its own stated assessment, was concerned with facts that “present[ed] a somewhat different question” (91 N.Y.2d at 747) than that addressed in Quinn. (See Brief for Appellant at 40-47 as well as our comments regarding the enactment of P.L. § 140.00(2) at 47-53). We only emphasize that, other than citing, in passing, the statutory provision now relied upon by the People (91 N.Y.2d at 746), the Quattlebaum Court did not at all address the import of any changes arising out of the enactment of subd. (2) of P.L. § 140.00. Rather, distinguishing Quinn, this Court in Quattlebaum specifically stated that it was not at all concerned with the situation where, in Quinn, there “was little doubt that the upper floors were occupied and used for residential purposes.” 91 N.Y.2d at 747. Consequently, instead of addressing the proviso in Quinn contained in its discussion of the “Astor House Exception,” Quattlebaum decided “a 32 somewhat different question”: Here, we must determine, under the facts presented, the meaning of “usually occupied by a person lodging therein at night.” Id. While then acknowledging that “there are myriad factual situations in which the question of what constitutes a dwelling can arise[,]” id. (citation omitted), the Quattlebaum Court only found the evidence to be legally insufficient to satisfy the statutory definition of a “dwelling” under subd. (3) of P.L. § 140.00. This was based on the Court’s understanding that “[a]lthough prior to 1967, burglary in the second degree required proof of another person's actual presence in the building wrongfully entered (former P.L. § 403), the statute since that time has required only that the building be ‘usually occupied’ (see, P.L. § 140.00[3]).” 91 N.Y.2d at 747. In short, rather than interpreting subd. (2) of P.L. §140.00, Quattlebaum was solely addressing the meaning of subd. (3) thereof. Hence, because, as we earlier noted (Brief for Appellant at 39), “‘[t]he language of any opinion must be confined to the facts before the court' … [citations omitted] … ”), People v. Anderson, 66 N.Y.2d 529, 535-536 (1985), the People’s claim that Quattlebaum specifically undercuts appellant’s argument is belied by the Court’s rather precise 33 delimiting of its holding that “[t]he evidence was clear that these offices were “rarely” used for overnight stays, typically only 20 to 30 times a year. This use is too infrequent, without more, to be usual.” 91 N.Y.2d at 749. Because that was the extent of the Court’s ruling, we respectfully submit that this appeal can be determined on a clean slate. To be sure, in Quattlebaum, the Court was concerned, in part, with the nature of the structure in its entirety. It thus found that, because the whole school building was not “a dwelling within the meaning of Penal Law § 140.00(3)[,]” 91 N.Y.2d at 747, the office in question was not a dwelling either. But no issue of the absence of interconnectivity was therein either raised or addressed. Thus, unlike in our case, the Court was not asked to determine whether that office with the bed, as a possibly separate and unconnected component of a much larger structure, might have satisfied that statutory definition of a “dwelling,” in and of itself.4 Practically, 4 The Court did note that “[n]either the building as a whole nor the fifth floor office had the customary indicia of a residence and its character or attributes[,]” 91 N.Y.2d at 424 (emphasis added), thereby suggesting that, had the entered office been actually used as a residence, and had there been any proof of lack of connectedness with the rest of the structure, those quarters — alone — might have commanded its own characterization. Based on the stated facts, however, had the issue of whether the office entered, in and of itself, been regarded as a “dwelling,” the result in Quattlebaum would undoubtedly have been the same. As described, “[o]ne of the offices has a bed, and another has a chair which can be used for sleeping. The school's Administrator testified that the bed in the office was ‘rarely’ used for overnight guests, estimating between 20 or 30 occasions per year, when someone was working late or when needed by a visiting priest. No one was staying overnight on the fifth floor on the night in (continued on next page … ) 34 given the described layout of the school building, the potential connectivity seems far closer to the facts in Quinn than either the Astor House or the building in this case, with its locked doors leading from stairway D. Accordingly, the “Astor House Exception” was neither addressed nor undermined by Quattlebaum. The People’s rejoinder, therefore, that “defendant is in no position to fault the Appellate Division for relying on the plain words of the statute and Quattlebaum to support its conclusion that ‘separately secured’ units that were ‘under the same roof’ as the hotel were dwellings ‘irrespective of whether there was “internal communication” between the two’” (R. 4; see also Appellant’s Brief at 29-30, 40-47)” (Resp. Brief at 42) lacks unambiguous support in the record. Given the limited issue in that case, there is simply nothing the People can point to which demonstrates, as they claim, that “Quattlebaum clearly shows that if one part of the ‘main building’ is used as a dwelling, both the main building and all of its ‘separately secured parts’ are dwellings, even if only one part of the main building is actually used for lodging at night.” (Resp. Brief at 44). In short, the import of P.L. § 140.00(2), relied upon by the People and the Appellate (continued from previous page … ) question.” 91 N.Y.2d at 746. Accordingly, that office alone, like the building as a whole, would still not have satisfied the “usually occupied by a person lodging therein at night” definition of P.L. §140.00(3). 35 Division, was never in issue. (See Brief for Appellant at pp. 41-42, 42 fn. 14). For all the reasons stated in our principal brief and for those additional reasons herein stated, P.L. § 140.00(2) does not apply to our facts and Quattlebaum made no contrary determination. Accordingly, it is respectfully submitted that the “Astor House Exception,” which constitutes this Court’s undisturbed judicial dictum, should govern the determination of this appeal. 36 POINT III BECAUSE THE ACTS CHARGED INVOLVED ONE CONTINUOUS SCHEME, AND EACH ACT CONSTITUTED ONE OF THE OFFENSES AND WAS ALSO A MATERIAL ELEMENT OF THE OTHER, THE SENTENCES IMPOSED ON EACH COUNT SHOULD HAVE BEEN MADE TO RUN CONCURRENTLY (Replying to Point II of Respondent’s Brief at 47-53) Relying, inter alia, on People v. Frazier, 16 N.Y.3d 36, 39-40 (2010), the People dispute appellant’s alternative argument that his sentences on each count should have been made to run concurrently. They argue that because his “entry into the Hilton Hotel locker room with the intent to commit a crime was a separate and distinct crime, involving separate and distinct acts, from his subsequent unlawful entry into a ‘separate building’ – Madame Tussaud’s[]” (Resp. Brief at 49), consecutive sentences are appropriate. The People further submit that appellant’s reliance on People v. Matarese, 57 A.D.2d 765 (1st Dept. 1977) is “misplaced.” For the reasons earlier stated in our principal brief, we respectfully submit that, if Matarese was correctly decided, the sentences imposed herein on the two separate counts should be made to run concurrently. (See Brief for Appellant at 56- 57). This argument is not at all “completely at odds” (Resp. Brief at 47) with 37 appellant’s contentions regarding the appropriate degree of Burglary. See Point II, ante. Whether one or both counts is reduced or not, they still amount to parts of one “illegal scheme and the two entries were performed in pursuance of that scheme (see C.P.L. § 200.30)[.]” People v. Matarese, 57 A.D.2d at 765. This Court’s decision in Frazier does not compel a contrary result. There, the issue was whether the sentences for Grand Larceny in the Third Degree and the Burglary in the Second Degree that preceded it could run consecutively. Holding that they could, the Court noted that “[t]he crime of burglary was completed when defendant entered each complainant's apartment with the intent to commit a crime.” 16 N.Y3d at 41. Given those two distinct offenses, it could not be said that there was “an act or omission which in itself constituted one of the offenses and also was a material element of the other.” P.L. § 70.25(2). In our case, with the charging of two counts of the same offense, however, that elemental test is met. Thus, the People’s claim that “[i]f consecutive sentences were lawful in Frazier, surely they were lawful here[]” (Resp. Brief at 50) does not find support. Also, in People v. Felder, 2 A.D.3d 365 (1st Dept. 2003), the issue was whether the defendant could have been convicted of two separate burglaries, which the court held was appropriate. The court was not concerned with whether or not he could be sentenced consecutively. Notably, in Felder, the defendant even 38 received concurrent terms of imprisonment. Indeed, as we earlier noted, separate convictions are one thing; consecutive sentences are another. Thus, absent manifest legislative intent, consecutive sentences under such circumstances improperly “pyramid” the penalties. See Prince v. United States, 352 U.S. 322, 327-28 (1957) (“It was manifestly the purpose of Congress to establish lesser offenses. But in doing so there was no indication that Congress intended also to pyramid the penalties.”); Heflin v. United States, 358 U.S. 415 (1959) (same); see also United States v. Gore, 154 F.3d 34, 47 (2d Cir. 1998) (“[al]though a defendant can be charged with multiple offenses under [21 U.S.C. § 841(a)(1)], based on our finding that the clauses under § 841(a)(1) satisfy the Blockburger test for separate offenses, Congress did not intend for a defendant to be cumulatively punished for two or more offenses based on the same act … [citations omitted].”); United States v. Palafox, 764 F.2d 558, 562 (9th Cir. 1985) (en banc) (where “each offense is committed at virtually the same time, in the same place, and with the same participants, the punishments should not be compounded”). For all the foregoing reasons, and those earlier stated, regardless of the Court’s disposition of our contention that either one or both of the Third Degree Burglary counts should be reduced, the sentences imposed on each should be made 39 to run concurrently. CONCLUSION For the Reasons Herein Stated, and For Those Reasons Earlier Stated in the Principal Brief for Appellant, the Order Affirming the Judgment of Conviction Should be Modified by Reducing Such Convictions to Burglary in the Third Degree; For the Reasons Stated in Point II, the Sentence Should Be Modified by Ordering the Terms of Imprisonment to Run Concurrently. Dated: New York, New York December 26, 2013 Respectfully submitted, Stanley Neustadter, Esq. Mark M. Baker, Esq. Attorneys for Defendant-Appellant Cardozo Appeals Clinic 55 Fifth Avenue, 11th Floor New York, NY 10003 (212) 790-0410 clinappcard@gmail.com